Share this story

Fox Broadcasting, having lost a key court ruling last month, is more eager than ever to kick Dish Network's new ad-skipping Hopper DVR off the market.

Last month, a federal judge found that Dish's DVRs probably don't break copyright law, ruling that the Hoppers can stay on the market and operate normally while Fox proceeds with its lawsuit. Fox is arguing that it can't wait, and it says that Dish's product has the potential to do serious damage to various aspects of the ad-supported TV business. As promised, it appealed the lower court decision and has now filed its opening brief at the US Court of Appeals for the 9th Circuit (PDF via Deadline.com).

The various affiliates of the Fox media empire originally filed the lawsuit back in May.

"Dish's unauthorized, commercial-free VOD service is anything but fair, and the need to enjoin it could not be greater," Fox lawyers write in their new brief. "PTAT [Prime Time Any Time] and AutoHop cut the legs out from under the ad-supported broadcast television business model, devalue Fox's commercial air time in the eyes of advertisers, [and] block Fox's own advertising efforts."

Under a Fox contract, Dish can only provide video-on-demand (VOD) services if it disables any kind of fast-forwarding features. Dish's PTAT service is being "openly market[ed] as commercial-free VOD," in violation of that agreement, write Fox lawyers.

Fox argues the judge's decision fails to seriously analyze the four "fair use" factors, and relies on a "strained" reading of the key Cablevision ruling, which allowed for remote DVR services. The idea that its users, not Dish, are in control of what data gets copied is much too lax, says Fox: "Under this standard, any infringing service can now escape direct liability as long as its customers 'press a button' to sign up."

Changes made by Dish since launching the product "provide the illusion of user 'control' when in fact Dish still runs the show." The DVR's default settings still record all four networks every night of the week and save that programming for eight days, Fox notes.

However much Fox might be in a hurry, its failure to win an injunction in the lower court means it will have to wait at least a little while longer with Dish's product on the market. The appeals case won't be fully briefed by the end of next month; Dish's brief is due January 17, and Fox can then file a reply to that brief before January 31.

Uh, so, I wonder what Fox thinks those tens of millions of us with plain ol' DVRs from the likes of Comcast, etc. are doing when we watch recorded programs -- dutifully sitting through and enjoying each and every commercial break?

Hey modern society has been pushing the working class to work longer and for less relative pay for decades now and they are surprised that we don't have the time or want to watch your commercials? I work with a lot of big companies and they all want everything and they want it yesterday. Well you know what, so do we.

Dear Fellow Stockholders:I have always said that the News Corporation ethos is to see opportunity where otherssee only challenge. In 2011, we proved these are not just words. In the teeth of a worldeconomy struggling with uncertainty, our Company has had a very good year.

In 2011, our revenues rose two percent to $33.4 billion, while adjusted operatingincome increased 12 percent to $4.98 billion. We are generating strong cash flow;we have the most robust balance sheet in our history; and we are successfullyexecuting our strategy to expand our wildly popular content into even morecountries and onto more platforms.

Seems like an easy case for Dish to win... Simply put a News Corp Exec on the stand and ask

1: Does News, or one of its major owners has a large stake in a Satelitte TV provider in the UK?2: What is the name of this service?3: What is the Sky+ Service that they offer?4: Do the many of channels on the Sky platform, including Sky operated channels such as Sky1 and Sky Atlantic, and long term terrestrial FTA channels like ITV still make significant revenues from advertising?

Dear Fellow Stockholders:I have always said that the News Corporation ethos is to see opportunity where otherssee only challenge. In 2011, we proved these are not just words. In the teeth of a worldeconomy struggling with uncertainty, our Company has had a very good year.

In 2011, our revenues rose two percent to $33.4 billion, while adjusted operatingincome increased 12 percent to $4.98 billion. We are generating strong cash flow;we have the most robust balance sheet in our history; and we are successfullyexecuting our strategy to expand our wildly popular content into even morecountries and onto more platforms.

Rupert MurdochChairman andChief Executive OfficerNews Corporation

How are they hurting, again? I'm confused.

That figure is for the entire Newscorp family, not just for Fox Broadcasting.

Uh, so, I wonder what Fox thinks those tens of millions of us with plain ol' DVRs from the likes of Comcast, etc. are doing when we watch recorded programs -- dutifully sitting through and enjoying each and every commercial break?

Hint: Fuck no.

Is Fox arguing that DVR is in the user's control while this PTAT thing is somehow being done by Dish (and hence a contract violation)? I hope Fox loses this one...even if it goes up to the SCOTUS.

So it sounds like fox wanted to prevent ad skipping on VOD playback by preventing fast forwarding, so Dish instead skipped serving the ads entirely. Sneaky, and against the goal of the deal, but doesn't sound like it's in breach of contract. It's like how Canadian TV networks replace ads in american content with their own ads.

I like fox sports, and sadly, using this ad-skipping requires you to watch your content after it originally aired. For sports, this is problematic as the end result is a clear spoiler and hard to avoid. So I always watch live when possible and, like most people, get up and walk around while the commercials play. For other programming though, I can see how this is an issue, as i record shows and watch them when it's convenient for mw, skipping ads as I go.

In other news, buggy whip manufacturers continued their appeal of their loss to Ford Motor Company for "Gasoline-powered Automobiles cut the legs out from under the horse-drive buggy business model, devalue Buggy Whip Production system in the eyes of purchasers, [and] block our own own advertising efforts. We ask that all gasoline-powered cars be enjoined from production and require that all car owners immediately purchase a horse and associated buggy-whips.

This is Fox desperately turning to the courts to save a failing business model. How about a little innovation?

Their own claims are contradicted by their own contract with Dish. Fox channels are not "commercial supported" on cable. None of them are. Every channel that you see on cable is an example of broadcasters "double dipping". They clutter the broadcast with advertising and then charge cable operators for the priveledge of propagating those commercials.

It should be one or the other but not both. I have ZERO sympathy for Fox here.

If Dish has to pay Fox to re-transmit, then Dish should be able to do whatever it likes to the commercials.

In other news, buggy whip manufacturers continued their appeal of their loss to Ford Motor Company for "Gasoline-powered Automobiles cut the legs out from under the horse-drive buggy business model, devalue Buggy Whip Production system in the eyes of purchasers, [and] block our own own advertising efforts. We ask that all gasoline-powered cars be enjoined from production and require that all car owners immediately purchase a horse and associated buggy-whips.

I think this is a different situation. In this case, the correct action is not the courts, but for Fox to pull their content from Dish until Dish caves because their customers start to defect.

I like fox sports, and sadly, using this ad-skipping requires you to watch your content after it originally aired. For sports, this is problematic as the end result is a clear spoiler and hard to avoid. So I always watch live when possible and, like most people, get up and walk around while the commercials play. For other programming though, I can see how this is an issue, as i record shows and watch them when it's convenient for mw, skipping ads as I go.

pppppfffft!

Just start recording the game and give it a little time to catch up to commercials. Then watch the game more or less normally and just skip through the commercials (30 seconds at a time if you are lucky).

I like fox sports, and sadly, using this ad-skipping requires you to watch your content after it originally aired. For sports, this is problematic as the end result is a clear spoiler and hard to avoid. So I always watch live when possible and, like most people, get up and walk around while the commercials play. For other programming though, I can see how this is an issue, as i record shows and watch them when it's convenient for mw, skipping ads as I go.

I'm not a Dish customer, but I like to give sporting events a few minutes head start on my DVR. Ideally, I start a bit late but catch up as I go by skipping the commercials, finishing close to real time and avoiding spoilers.

Dear Fellow Stockholders:I have always said that the News Corporation ethos is to see opportunity where otherssee only challenge. In 2011, we proved these are not just words. In the teeth of a worldeconomy struggling with uncertainty, our Company has had a very good year.

In 2011, our revenues rose two percent to $33.4 billion, while adjusted operatingincome increased 12 percent to $4.98 billion. We are generating strong cash flow;we have the most robust balance sheet in our history; and we are successfullyexecuting our strategy to expand our wildly popular content into even morecountries and onto more platforms.

That depends on how they win and what DISH can feasibly do. Assuming a complete ban on the commercial skipping service is ordered two options come to mind:

1. DISH has to replace every Hopper box with a compliant unit.2. More likely and cost effective, DISH issues a firmware update to remove the offending technology from their boxes.

Thanks!

I can see a LOT of very unhappy DISH owners if either of those outcomes happens. And those customers would be upset with DISH more than Fox so this could be a HUGE potential loss for DISH if Fox wins this judgment.

Big Content: It's a losing battle. Forge a new way forward. Netflix, etc are great and a much better alternative to scheduled broadcasts.

True, but I can only watch Mega Shark versus Giant Octopus so many times.

Okay, Netflix (and others) have gotten somewhat better, but the lack of current content on those services suggests that the money isn't there yet. You're getting what you pay for, and customers have shown they may not be willing to pay the rates that would be required to get the same content available on ad-supported channels.

Dear Fellow Stockholders:I have always said that the News Corporation ethos is to see opportunity where otherssee only challenge. In 2011, we proved these are not just words. In the teeth of a worldeconomy struggling with uncertainty, our Company has had a very good year.

In 2011, our revenues rose two percent to $33.4 billion, while adjusted operatingincome increased 12 percent to $4.98 billion. We are generating strong cash flow;we have the most robust balance sheet in our history; and we are successfullyexecuting our strategy to expand our wildly popular content into even morecountries and onto more platforms.

Rupert MurdochChairman andChief Executive OfficerNews Corporation

How are they hurting, again? I'm confused.

Newscorp owns Fox News, not Fox Broadcasting. Separate Entities.

Last I checked, News corp owns both of them. I suspect that it's fairly homogenous across large networks anyway

Sorry to not jump on the bandwagon but it's not as simple as Ads=Bad, No Ads = Good.

The thing about TV is that it's always been distributed electronically - the internet, aside from DVD's doesn't make content delivery cheaper here because TV content has always been electronic. So aside from increased competition which is a great thing, there isn't much opportunity to increase efficiency. This contrasts with other industries which have been disrupted such as music which was largely build on CD distribution.

If you like content you have to at least acknowledge the need to pay for that content. Increased competition helps prices a bit but it's not going to be drastic in this case. The alternative to ads is, realistically, less content or other sources of revenue. Netflix, at $8 a month can't ever support the extent or quality of content we're used to. It just can't happen.

Hey Fox, when asking a judge to do something, especially when you;ve already been told thay're likely not in violation, and when this servicve in practice is no different in any way from CommercialAdvance, a feature in thousands of VCRs for almost 20 years, you might want to actually, you know, TELL THE TRUTH:

1) the PTAT system is not even on by default, the user has to manually activate it.

2) AutoHop has to be a) turned on seperately from PTAT and b) prompts EVERY TIME, with the default answer "no show commercials" and further does not remove commercials until the next day, nor does it remove them from specials, sports, and most programs 2 hours or longer. This feature is functionally identical to Commercial Advance, a technology already vetted by the courts in the 90s and ruled perfectly legal even if set to automatically run, as it does not modify the recording in any way, it just leaves digital marks for when commercials begin and end for the unit to automatically move past to the next mark. Even if you argue PTAT is a violation, this service will remain active and legal.

3) Content is only available for 8 days unless a user explicitly saves a show or series (which requires the EXACT same steps as setting up an otherwise scheduled recording, even using the exact same scheduling screen). It is in fact no different from a user scheduling their own recordings for all your shows manually, as any DVR with at least 4 tuners can do for all the broadcast networks. Since there's visual feedback in the guide and a user can readily click to record what they want and can see what's not set up, PTAT merely saves the user a small amount of time but in no way ads any form of function or viewability not otherwise available to the DVR.

4) Dish is not in any way in their advertizing explicitly stating nor implying that PTAT is an on-demand service, it is simply a blanket scheduler that records programs on specific channels during specific hours. Older DVRs could readily be set to do this using block scheduling based on time and channel instead of program name. The prgoram is still a SINGLE broadcast (not a per user stream queued "on demand" and further can only be recorded specifically at the time it is aired. If the DVR is offline, having trouble, experiencing a storm, or more, the program does not record. It is therefor, just a recording of a live stream. In fact, Dish specifically notes that they're using "6 recording streams" and refer to the feature as "DVR" and in no way imply it;s content available for download at will in any way if the recording is not concluded at the specified airtime.

5) The story of how advertizing money is provided to you and to your affiliates via dish-rebroadcast is already fallable and full of holes. DVR'd programming DOES NOT COUNT AT ALL. If it is recorded, they['re not counted as viewers already in today's financial process, so waiting even longer to skip those ads in no way changes yours or their bottom line in any way.

6) It's OTA content. If you stop dish from passing the stream through, instead of their significant per-household additional cost you;re demanding per month, if this service was blocked Dish could simply add a 4tuner traditional anteanna interface, bypass paying you ANYTHING, and let users record their local HD stream into the DVR, and STILL implement auto-scheduling and autohop, and then there's nothign you could do about it at all.

7) You're required by federal law to make your signal available to cable and sattelite companies. You used to do this for free, or even pay THEM to do that as little as 10 years ago. You'r ratcheting up of fees to the point that your ad supported networks now cost more per month than any individual premium channel is getting the FCC's attention, and they could very easily rule that OTA is OTA, free is free, and begin forbidding you collect fees of any kind other than for the strict operation of the hardware to provide that signal ignoring any form of per-subscriber charge model. You'r lying outright about what Dish is doing, and assuming you have controling interest in content that has already been broadcast free and unencrypted to the same people in other ways. The FCC and SCOTUS have already ruled on our rights there, you have only thin ice to stand on, don't piss these people off.

8) if you lose, and it is unequivivally ruled that the customer, not the broadcaster, has the rights to skip commercials at will no matter who is providing the technology, Dish could readily add Auto-Hop to ALL channels, not just the PTAT content, and impact your business model even further, and ban it;s discussion or terms centering on it from all forms of rebroadcast contracts period preventing any form of negotiation on fee increases for it's inclusion.